KUALA LUMPUR (Bernama) – Whether registered or unregistered, any babysitter, childcare centre or care centre is subject to legal action if a case of child abuse or neglect is reported on their premises.
According to lawyer Muhammad Hariz Md Yusoff, they can be charged under the Penal Code (Act 574), Child Act 2001 (Act 611), Care Centres Act 1993 (Act 506) or Child Care Centre Act 1984 (Act 308).
“Whether it is a registered or unregistered childminder, supervisor, childcare centre or care centre operator offering childcare services, they can be taken to court if a mishap occurs while a child is under their control and supervision,” he told Bernama.
Muhammad Hariz, who is also an exco member of the Muslim Lawyers Association of Malaysia (PPMM), said compared to registered childcare centres and care centres, the unregistered ones are more likely to face legal action.
This is because the staff of registered centres are required to attend the PERMATA Early Childhood Care and Education course (KAP) conducted by the Department of Social Welfare Malaysia (JKM), where they are trained to handle and manage children professionally as well as informed of the consequences of child abuse or neglect.
RIGHTS OF PARENTS
Many parents are still not aware that they can institute legal proceedings if their child is involved in an accident whilst in the care of a babysitter at home or at a childcare centre or care centre.
Under Section 31 (1) (a) of the Child Act 2001, “any person who, being a person having the care of a child, abuses, neglects, abandons or exposes the child in a manner likely to cause him physical or emotional injury or causes or permits him to be so abused, neglected, abandoned or exposed commits an offence and shall on conviction be liable to a fine not exceeding RM20,000 or to imprisonment for a term not exceeding 10 years or to both”.
“If the case involves death, the Penal Code can be applied too – for example, Section 302 for murder or Section 304 for culpable homicide.
“To commence such a criminal prosecution, the parents or guardian must lodge a police report first and leave it to the police to conduct further investigations before obtaining a criminal prosecution order from the Public Prosecutor,” explained Muhammad Hariz.
He added that the affected parents can also file a civil suit to claim compensation from the childminder or childcare centre concerned, as well as to teach them a lesson.
“Similar (legal) action can also be taken against any errant childminder, childcare centre or care centre that is not registered. However, in such cases, it may be difficult for the police to conduct an investigation and collect evidence as the premises may not be equipped with closed-circuit television cameras. Evidence is needed to strengthen a criminal or civil suit filed against the accused or perpetrator,” he said.
ACTION AGAINST PARENTS
Can legal action be taken against parents for sending their children to an unregistered childcare centre?
Responding to this question, Muhammad Hariz said parents could be held partly accountable for their actions because they have failed or refused to ensure that the childminder or childcare centre or care centre concerned is registered with JKM.
“Nevertheless, as far as I am concerned, it’s difficult or impossible to take legal action against the parents because there’s no direct provision for this under the Penal Code, Child Act 2001, Care Centres Act 1993 and Child Care Centre Act 1984,” he said.
However, criminal proceedings can be instituted against the parents or guardians if it is found that they are directly linked to the criminal act committed against their child.
As for the number of childcare centres taken to court for not registering their premises, Muhammad Hariz said according to JKM’s Prosecution and Enforcement Division, two cases are currently pending criminal charges before the court.
He said JKM’s data for the period between 2014 and 2021 showed 27 cases of care centres and 44 cases of childcare centres convicted for not registering their premises under Section 5 of the Care Centres Act 1993 and Section 6 of the Child Care Centre Act 1984 respectively.
Meanwhile, Senator Fadhlina Sidek, who is also a lawyer, urged the government to draft a comprehensive policy, complete with continuous monitoring by the relevant agencies, to ensure the registration of all childminders, childcare centres and care centres in order to assure the safety and welfare of the children placed in their care.
According to her, various initiatives can be taken to encourage more childminders, childcare centres and care centres to register their premises.
The initiatives include providing them intensive training, and financial aid and subsidies. She said aid can also be extended to needy parents who tend to send their children to unregistered facilities as they are cheaper than their registered counterparts.
“But before introducing these initiatives, we need to have a policy in place which is clearly holistic. Every centre must be registered with JKM and there must be regular monitoring. This is important because there are childminders who take care of more than five children in their homes. In such cases, what we are worried about is the safety of the children,” she said.
Fadhlina, who is Family Empowerment Society deputy president, said several companies have taken the initiative to conduct professional training courses for childminders, thus giving an avenue for parents to employ a childminder who is trained and educated, and has the expertise to manage children.
Asked if stricter penalties must be imposed on errant childcare centres and care centres, Fadhlina said this would go back to the issue of policy and to what extent the government has provided an ecosystem that truly complies with the legal, safety and welfare aspects of children at childcare centres and care centres.
“The basic question we must ask is why are there childminders, childcare centres and care centres that are still not registered. Are the current policies instilling a sense of responsibility into the community to willingly register their centres?”
According to Fadhlina, the process of setting up a registered childcare centre or care centre is tedious and time-consuming as it involved a lot of procedures, including bureaucracy.
“Therefore, the relevant parties, especially JKM, should take note of this and simplify the process of registering childcare centres and care centres.
“The penalties will still be there whether a case of child abuse or neglect occurs at a registered or unregistered centre. Of course, centres that are not registered and are operating illegally have a greater responsibility… so the question is, why are they allowed to operate?”
Fadhlina said the prevalence of child abuse and neglect cases demands that the government create a more stringent child protection policy, besides providing a safer and more secure legal ecosystem for the vulnerable group.
She also urged the government to consider extending financial aid and support to those wishing to set up childcare centres so that more of these facilities can be opened at workplaces to ensure that children are cared for in an orderly and systematic manner.
“Besides having more childcare centres at government offices, the private sector can also provide such facilities on their premises.
“This way, the parents are able to focus on their work better as they are assured of their children’s safety,” she added.